Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85

Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85

It is not open in Class 1 proceedings to challenge the validity of the condition; validity arguments must be raised in Class 4. Construing condition 4 on its terms, there was no requirement for written approval and the approval could be by oral satisfaction. On the evidence, an officer from DLWC attended and, through his actions and comments, provided the necessary approval. Therefore, condition 4 was complied with; accordingly, the development consent has not lapsed and the applicant's s 96 modification application can be considered.

Jurisdiction
Australia
Judgment Date
18 June 2009
Procedural Posture
Class 1 Merit Appeal / Judgment on Preliminary Point of Fact/law
Outcome
Development consent has not lapsed; applicant's s 96 application can be considered.
Legal Topics
['development Consent' 'modification of Consent' 'validity of Condition' 'onus of Proof' 'lapsing of Consent']
['planning and Environment Law'] ['development Consent' 'modification of Consent' 'validity of Condition' 'onus of Proof' 'lapsing of Consent']

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Procedural Posture

Class 1 Merit Appeal / Judgment on Preliminary Point of Fact/law

Legal Issues

  1. 1 ['Whether the development consent has lapsed due to non-compliance with a condition' 'Whether the condition requiring approval by a statutory body was valid' 'Whether the validity of a condition can be challenged in Class 1 proceedings' 'Who bears the onus of proof for lapsing of consent']

Ratio Decidendi

It is not open in Class 1 proceedings to challenge the validity of the condition; validity arguments must be raised in Class 4. Construing condition 4 on its terms, there was no requirement for written approval and the approval could be by oral satisfaction. On the evidence, an officer from DLWC attended and, through his actions and comments, provided the necessary approval. Therefore, condition 4 was complied with; accordingly, the development consent has not lapsed and the applicant's s 96 modification application can be considered.

Court Disposition

Development consent has not lapsed; applicant's s 96 application can be considered.

Orders

  • ["The Applicant's section 96 application can be considered as there has been compliance with condition 4 of the development consent DA 0134/95 and that consent has not lapsed."]